The New York State Civil Liberties Union is suing the state Department of Labor over the organization’s placing of a GPS tracking device on one of their employee’s car without a warrant.

The employee, Michael Cunningham, also was the subject of a Times Union story by my colleague James Odato.

Here are the details from NYCLU:

The New York Civil Liberties Union today filed a lawsuit in state court challenging the New York State Department of Labor’s warrant-less planting of a GPS tracking device on an employee’s personal car.

The device, planted as part of an investigation into workplace misconduct, tracked the whereabouts of 30-year Department of Labor employee Michael Cunningham and his family for at least a month, including during evenings, weekends and while the family went on vacation out of state.

“Your boss can’t sit in the backseat of your car and watch you, your wife and your children 24 hours a day, but that’s exactly what the Department of Labor did to Mr. Cunningham,” said NYCLU Executive Director Donna Lieberman. “The courts have already prohibited police from using GPS devices to track people without a warrant. We’re confident they will hold the government agencies to the same standard. The only thing scarier than having a police officer secretly track you is having your boss secretly track you.”

The lawsuit, an Article 78 petition, was filed State Supreme Court of Albany County. It names the Department of Labor (DOL) as the defendant.

On June 3, 2008, at the DOL’s request, investigators for the office of the State Inspector General placed a GPS tacking device on Cunningham’s family car. It was planted for the purpose of investigating whether Cunningham accurately filled out his time sheets. In all, his family car was tracked 24 hours a day in June and July of 2008, including during a weeklong family vacation in Massachusetts.

“I can’t believe that they would invade my privacy so brazenly,” Cunningham said. “It made me scared for myself and the rest of my family, who also drove the car. I don’t want other state employees subjected to this outrageous and illegal surveillance.”

In May 2009, the New York State Court of Appeals, the state’s highest court, ruled in People v. Weaver that police must obtain a warrant before using a GPS device to track criminal suspects. The NYCLU filed an amicus brief in that case.

Based on evidence gathered by the GPS device, the DOL sought to fire Cunningham, whose job title was director of the staff and organization development. At proceedings to determine the validity of the dismissal, a hearing officer considered the GPS evidence over Cunningham’s objections. The officer relied on that evidence to uphold Cunningham’s dismissal, referencing the GPS data more than 20 times in his findings. Cunningham was issued a notice of termination on Aug. 24, 2010.

“Even in the role of an employer, the state is not free to engage in unchecked surveillance of New Yorkers,” said NYCLU Senior Staff Attorney Corey Stoughton, lead counsel on the case. “In an era of rapidly advancing surveillance technology, it’s important for the courts to weigh in and squelch this sort of behavior.”

The lawsuit asks the court to declare that DOL’s warrantless use of a GPS device to track Cunningham’s personal car violated the New York State Constitution’s guarantee against unreasonable searches and seizures. It also asks the court to declare that the hearing officer should not have considered the GPS evidence; to vacate the DOL’s decision to dismiss Cunningham; and reinstate Cunningham to his job.

Also serving as counsel on the case are NYU Civil Rights Clinic students William Frank, Ian Herbert and Sara Loubriel.

To download the full complaint and memo of law, visit http://www.nyclu.org/news/nyclu-files-suit-challenging-gps-tracking-of-state-employee%E2%80%99s-personal-car.

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